(DO NOT DELETE) 5/19/2009 7:16:47 PM ASPIRING TO THE IMPRACTICABLE: ALTERNATIVES TO INCARCERATION IN THE ERA OF MASS INCARCERATION MARSHA WEISSMAN In 1976, a remarkable handbook for reducing the reliance on incarceration was produced by a group of ordinary citizens known as the Prison Research Education Action Project (PREAP). Instead of Prisons1 was written to call attention to the overuse of incarceration at a time when the United States prison population was about 250,000.2 The handbook recommended the development and use of alternatives-to-incarceration (ATI) programs as a means to “excarcerate,” defined by the authors as “[p]rograms or procedures that move away from the notion of imprisonment as a response to lawbreaking.”3 ATI programs were viewed as embedded within communities and as options that offered prospects for reconciliation and community empowerment, in addition to alternative ways to achieve accountability. PREAP’s analysis of crime and punishment, including both ATI and decarceration strategies, was set within the larger contexts of poverty, inequality, and racism. More than thirty years later, most jurisdictions around the country now offer ATI programs. Yet many present day ATI programs have been divorced from considerations of the socio-political and economic context of crime and punishment and stripped of the holistic framework explained in 1976. ATI programs have instead become part of a technocratic criminal justice system, characterized by punishment, increasing control over social Marsha Weissman, M.P.A. is the founder and Executive Director of the Center for Community Alternatives. Ms. Weissman holds a Master’s Degree in Public Administration from the Maxwell School of Citizenship, Syracuse University, where she has taught courses. She is completing her Ph.D. in Social Science. She serves on the Board of Directors of the Sentencing Project, the National HIRE Network, and the New York State Defenders Association. In 2008, she was appointed by Governor David Paterson to serve on the Task Force for Transforming Juvenile Justice. She has been honored by the National Association of Sentencing Advocates for her contribution to the field. Ms. Weissman is especially grateful to the staff of the N.Y.U. Review of Law & Social Change for their valuable editorial assistance. 1. FAY HONEY KNOPP, BARBARA BOWARD, MARY JO BRACH, SCOTT CHRISTIANSON, MARY ANN LARGEN, JULIE LEWIN, JANET LUGO, MARK MORRIS & WENDY NEWTON, PRISON RESEARCH ACTION PROJECT, INSTEAD OF PRISONS: A HANDBOOK FOR ABOLITIONISTS (1976). 2.See U.S. DEP’T. OF JUSTICE, BUREAU OF JUSTICE STATISTICS, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS tbl.6.21 (Kathleen Maguire & Ann L. Pastore eds.) (1996). 3.Id. at 10. 235 WEISSMAN - EIC PROOF 4.29.09+PROOF EDITS 1 5.19.09.DOC (DO NOT DELETE) 5/19/2009 7:16:47 PM 236 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 33:235 institutions, and a dominant focus on fiscal calculations—what David Garland terms “the culture of control.”4 The field of criminology is dominated by professional researchers and practitioners whose focus is the testing and implementation of what has come to be known as “best practices”—the tools, techniques, and methods that address so-called criminogenic behaviors and clinical needs of people in the criminal justice system. However, the paradigm of mass incarceration, which has led to the creation of the largest prison population in the world,5 goes largely unchallenged.6 Within a paradigm that criminalizes a plethora of family, physical health, and mental health problems, the search for technocratic solutions can often seem sensible. The number of people caught in the criminal justice system that have health and mental health problems, learning disabilities, and the like has been widely reported and discussed.7 ATI programs, such as those offered by the Center for Community Alternatives in New York, have come into existence to provide a range of advocacy, treatment, and support services to help people avoid incarceration, or if imprisoned, to help them make a successful return to their families and communities. 4. See DAVID GARLAND, THE CULTURE OF CONTROL: CRIME AND SOCIAL ORDER IN CONTEMPORARY SOCIETY 175–91 (2001). Garland describes the new culture of crime control emerging in Britain and America as a shift in the “cultural coordinates of crime control . altering the way that penal agents think and act, giving new meaning to what they say and do.” Id. at 175. The three elements that form this new culture of control are (1) a recoded penal-welfarism, meaning a shift from welfare and rehabilitation to punishment and retribution, id.; (2) a new criminology of control, marked by a focus on changing social systems such as transport systems, schools, housing, and leisure areas to create fewer criminological hot spots, id. at 182–83; and (3) an economic style of decision- making, referring to new policies and priority settings by criminal justice agencies focused on economic calculations of crime control and prevention. Id. at 189. 5. See Adam Liptak, American Exception: Inmate Count in U.S. Dwarfs Other Nations’, N. Y. TIMES, Apr. 23, 2008, at A1. 6. The scholarship on the phenomenon of mass incarceration is relatively recent, fairly sparse, and exemplified by BRUCE WESTERN, PUNISHMENT AND INEQUALITY IN AMERICA (2006); Loïc Wacquant, Deadly Symbiosis: When Prison and Ghetto Meet and Mesh, 3 PUNISHMENT & SOC’Y 95 (2001); JONATHAN SIMON, GOVERNING THROUGH CRIME: HOW THE WAR ON CRIME TRANSFORMED AMERICAN DEMOCRACY AND CREATED A CULTURE OF FEAR (2007); RUTH WILSON GILMORE, GOLDEN GULAG: PRISONS, SURPLUS, CRISIS AND OPPOSITION IN GLOBALIZING CALIFORNIA (2007); and GARLAND, supra note 4. 7. See, e.g., SUBSTANCE ABUSE & MENTAL HEALTH SERVS. ADMIN., OFFICE OF APPLIED STUD., RESULTS FROM THE 2007 NATIONAL SURVEY ON DRUG USE AND HEALTH: NATIONAL FINDINGS 27 (2008) (reporting that of the estimated 1.6 million adults on parole or other supervised release from prison during the past year, 24.1% were current illicit drug users, considerably higher than the 7.7% among the adults not on parole or on supervised release). See also NAT’L COMM’N ON CORR. HEALTH, THE HEALTH STATUS OF SOON-TO- BE-RELEASED INMATES (2002) and Nicholas Freudenberg, Jails, Prisons and the Health of Urban Populations: A Review of the Impact of the Correctional System on Community Health, 78 J. URB. HEALTH: BULL. ACAD. MED. 214, 217–22 (2001), for overviews of the health problems of people in the criminal justice system. See also PAULA M. DITTON, U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, NCJ 174463, MENTAL HEALTH AND TREATMENT OF INMATES AND PROBATIONERS (1999) (discussing the prevalence of mental health problems). WEISSMAN - EIC PROOF 4.29.09+PROOF EDITS 1 5.19.09.DOC (DO NOT DELETE) 5/19/2009 7:16:47 PM 2009] ASPIRING TO THE IMPRACTICABLE 237 While it is important to apply expertise to help clients and explain and translate behaviors to judges and prosecutors, the technocratic fix will not undo the United States’ over-reliance on incarceration. Mass incarceration is a symptom of grave structural problems in the United States. ATI programming is not a prescription to treat this symptom or its underlying causes. The reliance on incarceration for social control is not due to a lack of effective ATI programs, but rather larger socio-economic issues and structural racism that have marginalized a large percentage of the U.S. population. In this article, I argue that while ATI programming holds promise as part of a criminal justice reform strategy, the full realization of this promise is thwarted by the structure and rules of the criminal justice system itself. More importantly, the legacy of racism in the U.S. and the economic restructuring and abandonment of inner cities, accompanied by an ensuing crisis in employment, fuels the push for mass incarceration as the primary response to crime. In Section I, I look at the development and efficacy of ATI programs. In Section II, I summarize the systemic forces that have combined to create a carceral state that renders alternatives to incarceration peripheral to its operation. In Section III, I offer some reflections about the role of community and grassroots organizing in making ATI approaches more central to crime prevention and control. ATI programs can become more central to efforts to dismantle mass incarceration by (1) reaching people who would otherwise be incarcerated through better gate keeping and advocacy, (2) demonstrating an affirmative commitment to tackle racial disparities in the criminal justice system, and (3) building stronger ties and connections to the communities most affected by mass incarceration. I. ALTERNATIVES-TO-INCARCERATION PROGRAMS A. The Development of ATI Programming The current manifestation of ATI programming began in the 1980s in response to the emerging recognition that prison populations were growing out of control and in response to a reconsideration of the efficacy of rehabilitation.8 ATI programs, variously called “intermediate sanctions” or “community corrections,” came to include rehabilitation-oriented 8. See JOAN PETERSILIA, ARTHUR J. LURIGIO & JAMES M. BYRNE, SMART SENTENCING: THE EMERGENCE OF INTERMEDIATE SANCTIONS, at ix–xv (James M. Byrne, Arthur J. Lurigio & Joan Petersilia eds., 1992); Michael Tonry & Mary Lynch, Intermediate Sanctions, 20 CRIME & JUST. 99, 99–100 (1996) (describing these as “intermediate sanctions that fall between prison and probation in their severity and intrusiveness”). WEISSMAN - EIC PROOF 4.29.09+PROOF EDITS